Law and reality in publishing (seldom the same thing) from the author's side of the slush pile, with occasional forays into politics, military affairs, censorship and the First Amendment, legal theory, and anything else that strikes me as interesting.

12 June 2014

HathiTrustV. Trees

So, on Tuesday of this week the Second Circuit issued its opinion in the HathiTrust matter.64 As can be expected, many observers and advocates have been very busy spinning the opinion for their respective preconceived notions that the-law-is-what-the-law-should-be... from all viewpoints. I'm afraid, however, that most of these views miss the forest for the trees... the dead, pulped trees. And, as we'll see as we work through the civil procedure aspects of the matter, it means a lot more and a lot less than it seems to.

A. No Trees Left Standing

The key legal question underlying the entire HathiTrust action is who has standing to complain about whom. The second half of that inquiry was essentially punted by the Second Circuit, although I think it did so without adequate consideration. As I noted when this matter was originally filed, there are significant issues concerning whether many of the library-defendants in this matter can be sued in federal court in the first place; one would hope this would be formally resolved in any future appeals, but the Second Circuit found it either unnecessary or inadvisable to do so in this opinion. That said, the Circuit reached the correct decision regarding "who can sue," albeit on excessive and misleading rhetoric that will prove problematic in other actions... including other aspects of the Google Book Search litigation.

Three of these authors’ associations — Authors Guild, Inc., Australian Society of Authors Limited, and Writers’ Union of Canada — claim to have standing, solely as a matter of U.S. law, to seek an injunction for copyright infringement on their members’ behalf. But, as we have previously explained, § 501 of “the Copyright Act does not permit copyright holders to choose third parties to bring suits on their behalf.” ABKCO Music, Inc. v. Harrisongs Music, Ltd., 944 F.2d 971, 980 (2d Cir. 1991); see also Itar-Tass Russian News Agency v. Russian Kurier, Inc., 153 F.3d 82, 92 (2d Cir. 1998) (“United States law permits suit only by owners of ‘an exclusive right under a copyright’....” (quoting 17 U.S.C. § 501(b))). Accordingly, we agree with the district court that these associations lack standing to bring suit on behalf of their members, and they were properly dismissed from the suit.65

As I remarked before, "associational standing" is quite restrictive. In this particular instance, the Authors['] Guild cannot represent copyrighted properties existing on dead trees in which it did not itself own copyright rights.

And this leads to the first of several rhetorical overstatements — one so serious that it is actual error — in the Second Circuit's opinion. As Judge Baer noted below, without that associational standing, the scope of the case before his was drastically reduced: Not the entire panoply of printed works in the collection of any of the respective libraries, or even all of the works published by any particular publisher that are in the collection of any of the respective libraries, but to a combination of (1) 78 specific works identified on Exhibit A of the First Amended Complaint and (2) those works appearing in the respective libraries that were properly represented by Union des Écrivaines et des Écrivains Québécois, Authors’ Licensing and Collecting Society, Sveriges Författarförbund, and Norsk faglitterær forfattero og oversetterforening. This is one helluva lot narrower than the rhetoric that follows indicates... and because so far as the record indicates it does not include any representative work from between seven and nine of the thirteen publishing industries — most especially, limited-circulation academic monographs (the strongest case for fair use, as we'll see later) and illustrated works of fiction (one of the weakest cases for fair use), this decision is at best persuasive authority regarding those kinds of works, let alone origins. And the less said about porn, perhaps, the better.66

This is a well-deserved knee to the groin of the Authors['] Guild. The organization has shown remarkable tunnel vision concerning electronic rights for the past quarter of a century, always spouting rhetoric and taking actions (and making court filings) consistent with expanding its powerbase and self-appointed and -appreciated role of speaking "for all authors"... including those excluded from membership in the Guild by its own rules, those who have explicitly left the Guild, and those whose exploitation of their own copyrights proceeds on a model either neglected or rejected by the Guild. And that leaves aside poor choices of counsel to proceed on the Guild's behalf, and that is not limited to the Google Books matters. Civilization does not end at the Hudson; neither does the community of authors, nor their efforts to exploit and protect their own visions of their own rights. Put another way — and as revealed by the particular administrative terms proposed in settlement agreements for other Google Books litigation — this is a power grab of the worst kind, reminiscent of the overexpansion of both the Teamsters and the AFL–CIO (then under corrupt influence and/or control, one should note) to encompass wide varieties of unrelated workers and industries. The irony that the Guild cannot even claim to be a labor organization seems to have escaped everyone;67 it is, instead, acting like a cartel. And cartels get little sympathy from me, even when they are purportedly acting against "competing" monopolies.68

Keep those restrictions in mind as we parse the rest of the Second Circuit's decision. Indeed, those restrictions on standing — and on what works are really at issue — will (or at least should) inform both the fair-use result and the scope of the general result.

Whether this reasoning and line of cases remains good law in light of Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154 (2010), was apparently not raised. It continues to be an ongoing controversy; by the literal wording of the statute, an author could transfer the explicit right to sue a certain class of infringer to the organization and thereby have transferred "an exclusive right under a copyright." That position has been rejected by other courts. See, e.g., Righthaven llc v. Hoehn, 716 F.3d 1166 (9th Cir. 2013); accord, Silvers v. Sony Pictures Entertainment, Inc., 402 F.3d 881, 890–91 (9th Cir. 2005) (en banc) (holding that "exclusive rights" are limited to those listed in § 106 of the Copyright Act, which do not include the right to sue to stop infringement). However, the Supreme Court implicitly held in Muchnick that a class representative would have such standing, despite not owning the respective right to any work other than her own. Perhaps the reasoning continues to apply to associational standing without modification; the bare statement made in this opinion, however, is too broad.

This is a critically important question for another time. As a matter of law, unions in the US (whether they're called "union", "association"... or "guild") are limited to employees, each of whom passes the multifactor IRS test for distinguishing between "employee" and "independent contractor." One slightly outdated explanation of this test appears in Joint Committee on Taxation, Present Law and Background Relating to Worker Classification for Federal Tax Purposes(PDF) 3–5 (2007). An even cursory examination of this list of factors (neither exhaustive nor, in detail, the current state of the law) discloses that freelance authors simply are not "employees"... and therefore are not eligible to unionize. Whether freelance authors — and artists, and musicians, and so on — should be so eligible is a separate question. The irony that only those creating work for hire (none of whom can be properly represented by the Guild in this litigation, because none of them own any exclusive copyright rights either) can be "employees" is perhaps a bit much. And if a group of otherwise independent businesses gets together and colludes to restrict price, output, or anything else, we call that an antitrust violation.

[T]he remedy for illegal [antitrust] conduct is a complaint lodged with the proper law enforcement offices or a civil suit or both. Another company's alleged violation of antitrust laws is not an excuse for engaging in your own violations of law. Nor is suspicion that that may be occurring a defense to the claims litigated at this trial.

United States v. Apple, Inc., 952 F. Supp. 2d 638, 708 (S.D.N.Y. 2013). I'm sure that the highly sophisticated readers of this blawg understand full well that although the law is not a seamless web — indeed, and particularly in the arts, it's pretty damned seamy — there's considerable overlap... and that the relationship between antitrust and intellectual property is particularly close (and particularly seamy).

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